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Machindra Bhiku Mohite vs The State Of Maharashtra on 1 March, 2018

4-APPEAL-694-2015-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.694 OF 2015

MACCHINDRA BHIKU MOHITE )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Satyavrat Joshi, Appointed Advocate for the Appellant.

Mr.S.V.Gavand, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 1st MARCH 2018

JUDGMENT :

1 By this appeal, the appellant/accused is challenging

the judgment and order dated 2 nd August 2013 passed by the

learned Additional Sessions Judge, Baramati, in Sessions Case

No.34 of 2012 whereby he is convicted of offences punishable

under Sections 376(2)(f) and 506(II) of the Indian Penal Code.

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For the offence punishable under Section 376(2)(f) of the Indian

Penal Code, the appellant/accused is sentenced to suffer rigorous

imprisonment for 10 years apart from payment of fine of

Rs.1,000/- and default sentence of rigorous imprisonment for 15

days. For the offence punishable under Section 506(II) of the

Indian Penal Code, he is sentenced to suffer rigorous

imprisonment for 1 year apart from fine of Rs.500/- and default

sentence of rigorous imprisonment for 7 days.

2 Facts leading to the prosecution of the

appellant/accused can be summarized thus :

(a) The prosecutrix/PW1, at the time of the alleged incident,

was aged about 10 years and 9 months. She is resident of

Village Shelgaon, Vaidawadi in Indapur Taluka of Pune

District. She was residing with her father PW4 Taiappa, her

mother as well as brothers and sisters. She was taking

education in Zilla Parishad Primary School of the village.

She had passed 3rd Standard and was promoted to 4th

Standard. The incident in question took place after 8 p.m.

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of 3rd June 2011. PW4 Taiappa had asked the

prosecutrix/PW1 to take grains to the flour mill for grinding.

Initially, the prosecutrix/PW1 had not carried money

towards the charges for grinding, and therefore, she was

sent back by the appellant/accused, who was working in the

flour mill of DW1 Smt.Rohini Aarde. The prosecutrix/PW1

then again returned back to the flour mill by taking amount

of Rs.10/- from her father PW4 Taiappa. As the

prosecutrix/PW1 came to the flour mill all alone, the

appellant/accused shut the door of the flour mill and

committed rape on the prosecutrix/PW1 inside the flour

mill. The prosecutrix/PW1 then returned to her home

weeping. Upon being questioned by her father PW4

Taiappa, she disclosed the incident to him. After

committing rape on the prosecutrix/PW1, the

appellant/accused had threatened her that she would be

killed if the incident is disclosed to anybody else. Family

members of the prosecutrix/PW1 were frightened because of

this incident and the consequent threatening. Hence, in the

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night hours, they did not go to the police station. However,

on the next day, the prosecutrix/PW1 was taken to the

police station, where she lodged report Exhibit 13, which

has resulted in registration of Crime No.99 of 2011 for

offences punishable under Sections 376 and 506 of the

Indian Penal Code at Walchand Nagar Police Station against

the appellant/ accused.

(b) Routine investigation followed. The Investigator collected

Birth Certificate of the prosecutrix/PW1 from the Zilla

Parishad School. Statement of witnesses came to be

recorded. The prosecutrix/PW1 was got medically

examined from PW5 Dr.Suvarna Rathod, Chief Residential

Doctor at the Sassoon Hospital at Pune. Her Ossification test

was conducted by PW7 Dr.Ajay Taware, Assistant Professor

working with B.J.Medical College and Sassoon Hospital,

Pune. After completion of investigation, the

appellant/accused came to be charge-sheeted.

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(c) As the appellant/accused pleaded not guilty to the Charge

explained to him, the prosecution has examined in all eight

witnesses for proving the alleged offence. In rebuttal, the

appellant/accused has examined Smt.Rohini Aarde – owner

of the flour mill as DW1. The defence of the

appellant/accused is that of total denial.

(d) Upon hearing the parties, by the impugned judgment and

order, the appellant/accused came to be convicted of

offences punishable under Sections 376(2)(f) and 506(II) of

the Indian Penal Code and he came to be sentenced as

indicated in the opening paragraph of this judgment.

3 I have heard Mr.Satyavrat Joshi, the learned advocate

appointed to represent the appellant/accused at the cost of the

State at sufficient length of time. He argued that the

prosecutrix/PW1 is not proved to be below 12 years of age, and as

such, conviction and resultant sentence of 10 years rigorous

imprisonment is not proper. Evidence of PW7 Dr.Ajay Taware

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shows that the prosecutrix/PW1, at the relevant time, was 11 to

13 years of age and by adding margin of error of two years in the

Ossification test, the prosecutrix/PW1 can be said to be aged

about 15 years at the relevant time. The learned advocate further

argued that as on date, without remission, the appellant/accused

has undergone jail sentence of 7 years, and inclusive of remission

it could be of 8 years. Therefore, by reducing the sentence to the

already undergone, the appeal needs to be allowed partly, in the

event this court comes to the conclusion that offences alleged are

proved by the prosecution. The learned advocate further argued

that evidence of the prosecutrix/PW1 in respect of the incident is

not all relevant because the spot of the incident was surrounded

by houses and it was a populace locality. It is not probable that

such an incident could take place and that too, at the flour mill,

which is being visited by so many customers. The learned

advocate criticized the medical evidence by stating that injuries to

the private part of the prosecutrix/PW1 can be attributable to

other reasons also.

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4 As against this, the learned APP supported the

impugned judgment and order of conviction by placing reliance on

evidence of the prosecutrix/PW1, her father PW4 Taiappa as well

as the medical evidence coming from the mouth of PW5

Dr.Suvarna Rathod. The learned APP further argued that age of

the prosecutrix/PW1 is proved by the prosecution through

evidence of PW2 Umesh Satpute, in-charge Head Master of the

Zilla Parishad School.

5 I have carefully considered the rival submissions and

also perused the Record and Proceedings including deposition of

witnesses and documentary evidence adduced by the prosecution.

The case in hand is that of sexual assault on a female child, who

at the relevant time, was aged about 10 years and 9 months. In

the matter of State of Punjab vs. Gurmit Singh1the Honourable

Apex Court has held that in cases of sexual offence, the court

should examine the broader probabilities of the case and should

not get swayed by minor contradictions or insignificant

discrepancies in the statement of the prosecutrix. If evidence of
1 AIR 1996 SC 1393

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the prosecutrix inspires confidence, then it should be relied upon

without seeking corroboration to her statement in material

particulars. In the matter of Aman Kumar and another vs. State

of Haryana 2, the Honourable Apex Court has held that a

prosecutrix complaining of having been a victim of the offence of

rape stands at a higher pedestal than an injured victim. In the

3,
matter of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat

the Honourable Apex Court has stated that a girl or a woman in

the tradition bound non-permissive society of India would be

extremely reluctant even to admit that any incident which is likely

to reflect on her chastity had ever occurred. She would be

conscious of the danger of being ostracized by the society or being

looked down by the society including by her own family members,

relatives, friends and neighbours.

6 In the case in hand, the prosecutrix/PW1 is a school

going child having been promoted to 4 th Standard at the relevant

time. Evidence of PW2 Umesh Satpute, in-charge Head Master of
2 AIR 2004 SC 1497

3 AIR 1983 SC 753(1)

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Zilla Parishad School at Mali Vasti, Shelgaon, shows that the

prosecutrix/PW1 was admitted in the said school on 8th February

2011 and her date of birth is recorded in the school record as 25 th

August 2000. This date of birth came to be recorded as per the

previous School Leaving Certificate of the prosecutrix/PW1. PW2

Umesh Satpute has proved extract of General Register of the

School (Exhibit 18) as well as Birth Certificate of the

prosecutrix/PW1 issued by his school (Exhibit 16). These

documents reflect date of birth of the prosecutrix/PW1 as 25 th

August 2000. The prosecutrix/PW1 in her evidence as stated her

date of birth as 25th August 2000. Evidence of PW2 Umesh

Satpute in respect of date of birth of the prosecutrix/PW1 has

virtually gone unchallenged. There is no suggestion to this

witness that recorded date of birth of the prosecutrix/PW1 is

incorrect. Similarly, evidence of the prosecutrix/ PW1 regarding

her date of birth has remained unchallenged in the cross-

examination. Provisions of Section 35 of the Indian Evidence Act,

1872, makes it clear that if entry is made by a public servant in

the official book in discharge of his official duty, then such entry

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becomes relevant fact and is admissible in evidence. In the case in

hand, the entry in the record of the school, which is ante litem

motam in nature, reflects date of birth of the prosecutrix/PW1 as

25th August 2000 and the same is gaining corroboration from the

version of the prosecutrix/PW1. This evidence is not challenged

by the defence, and as such, I see no reason to disbelieve the

same. Thus, this evidence points out that on the date of the

incident, i.e. on 3rd June 2011, the prosecutrix/PW1 was aged

about 10 years and 9 months and as such, was certainly below 12

years of age.

7 The prosecutrix/PW1 hails from a rustic family and

her parents, as seen from her cross-examination, used to indulge

in hunting wild boar. Her mother used to sell toys and other

articles in villages. As seen from the cross-examination of the

prosecutrix/ PW1, on the day of the incident, her family members

were successful in hunting a wild board. In the evening of the day

of the incident, meat of the wild boar was being cooked and the

family members found the flour available in the house short of

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their requirement. That is how, as seen from the cross-

examination of the prosecutrix/PW1, she was sent for grinding

grains to the flour mill by PW4 Taiappa. In the backdrop of this

material found in the cross-examination of the prosecutrix/PW1,

in her chief-examination, the prosecutrix/PW1 has stated that at

about 8.00 p.m., as per the direction of her father PW4 Taiappa,

she took the food grains for grinding at the flour mill of a person

named Kharade, where the appellant/accused was working. She

deposed that the appellant/accused asked her whether she had

brought money towards the grinding charges. Then the

prosecutrix/PW1 returned back, got an amount of Rs.10/- from

her father and again came back to the flour mill. At that time, as

seen from her deposition, there was nobody else in the flour mill,

except the appellant/accused. Taking advantage of the situation,

as per version of the prosecutrix/PW1, the appellant/accused

closed the door of the flour mill and committed rape on her. He,

then, threatened the prosecutrix/PW1that if the incident is

disclosed, she would be killed. The prosecutrix/PW1 deposed that

while weeping she returned back to her house and narrated the

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incident to her father. Because of threatening of the

appellant/accused, in the night time, they did not go to the police

station, but on the next day, she went to police station Walchand

Nagar and lodged the report Exhibit 13.

8 Thus, evidence of the prosecutrix/PW1 and the

material elicited from her cross-examination unerringly points out

that there was need of flour for feeding the family members of the

prosecutrix/PW1 on the eve of cooking meat of the wild board,

and therefore, the prosecutrix/PW1 was constrained to go to the

flour mill which was being operated by the appellant/accused.

9 Cross-examination of the prosecutrix/PW1 reveals that

the flour mill was surrounded by several houses and at the back

side of the flour mill there was a grocery shop where people in the

locality used to talk with each other. With this, it was attempted

to show that the incident is improbable. However, evidence of the

prosecutrix/ PW1 shows that she was all alone when the incident

took place inside the flour mill, and that too, by closing the door

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thereof. The incident happened post 8.00 p.m. At such hours of

the night, there was no probability of other customers going to the

flour mill. The prosecutrix/PW1 was a female child of tender

years of age. It was not expected of her to make a hue and cry

when pitted against the fully grown adult. Moreover, cross-

examination of the prosecutrix/PW1 does not show that on the

relevant day, and particularly, at that hour of the day, there were

people in the vicinity of the flour mill. As such, on this count, the

evidence of the prosecutrix/PW1 cannot be disbelieved.

10 Evidence of PW4 Taiappa, who is father of the

prosecutrix/PW1, is fully corroborating the version of the

prosecution. This witness has proved former statement of the

prosecutrix/PW1, made to him soon after the incident, implicating

the appellant/accused in the crime in question. Evidence of this

witness shows that the prosecutrix/PW1 returned to her home

from the flour mill and she was weeping and in a frightened state

of mind at that time. Therefore, being a father, PW4 Taiappa

questioned the prosecutrix/PW1 and then she disclosed that the

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appellant/accused had committed rape on her. Cross-examination

of this witness reveals that he was knowing the appellant/accused

and that is but natural, because the incident took place in a small

village where people are generally acquainted with each other.

Cross-examination of this witness does not reflect anything which

would cast a shadow of doubt on his version. Thus, the evidence

of PW4 Taiappa, which is proving the former statement of the

prosecutrix/PW1 in respect of the incident, is fully corroborating

the version of the prosecutrix/ PW1, which is, infact, in tune with

the FIR lodged by her.

11 On the very next day of the incident, the prosecutrix/

PW1 was examined by PW5 Dr.Suvarna Rathod, Chief Resident

Doctor at the Sassoon General Hospital, Pune. This Medical

Officer has also proved the former statement of the

prosecutrix/PW1 which is to the effect that the appellant/accused

had committed rape on her when she had been to the flour mill

for grinding the grains. That apart, evidence of PW5 Dr.Suvarna

Rathod shows that the prosecutrix/PW1 was having two injuries

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on her right hand. One was a superficial contusion of size 3 x 2

cms., red in colour, and the other was a small laceration of size 1 x

0.2 cms. on her right forearm. From the cross-examination of the

prosecutrix/PW1, the defence has brought on record that in the

incident in question, injuries were caused to her right hand. This

version of the prosecutrix/PW1 coming on record from the cross-

examination is gaining further corroboration the medical

evidence.

12 Evidence of PW5 Dr.Suvarna Rathod shows that on

examination of the private part of the prosecutrix/PW1, she found

her labia majora inflamed and the hymen of the prosecutrix/PW1

was also found torn at multiple sides. With such finding, PW5

Dr.Suvarna Rathod gave opinion that there was penetrative sexual

vaginal intercourse with the prosecutrix/PW1.

13 Cross-examination of the prosecutrix/PW1 reflects that

she used to suffer fall while playing. From cross-examination of

PW5 Dr.Suvarna Rathod it is elicited by the defence that the

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hymen tear can be caused while jumping from a tree or a bicycle,

and similarly, it can be caused by insertion of a foreign object.

These suggestions lead us to nowhere because there are no

suggestions to the prosecutrix/PW1 that due to suffering a fall she

had suffered vaginal bleeding at any point of time. Similarly,

there is nothing on record to suggest that inflammation and

excoriation of labia majora of the prosecutrix/PW1 has nexus with

some other incident, than the incident deposed to by her. Thus,

the medical evidence also supports the version of the

prosecutrix/PW1. Contemporaneous record in the form of

medical report Exhibit 25 prepared by PW5 Dr.Suvarna Rathod is

consistent with the prosecution case.

14 The prosecutrix/PW1 was subjected to the Ossification

test by PW7 Dr.Ajay Taware , who deposed that her bony age was

found to be 11 to 13 years. However, this evidence pales into

insignificance, in the wake of primary evidence recording age of

the prosecutrix/PW1, which is reflecting her age as 10 years and 9

months.

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15 The defence has attempted to demonstrate that the

flour mill, where the incident took place, was being operated by

its owner – DW1 Smt.Rohini Aarde. In chief-examination, this

witness has stated that she used to operate the said flour mill from

8.00 a.m. to 9.00 p.m. and the appellant/accused has no concern

with the flour mill. However, in cross-examination, this witness

has admitted that on the day of the incident, she left the flour

mill at 6.30 p.m. for cooking food and at that time, the

appellant/accused was operating the said flour mill. Thus, even

the defence evidence indicates that at the time of the incident in

question, the appellant/accused was very much present at the spot

of the incident.

16 The cumulative effect of the foregoing discussion

makes it clear that the appellant/accused had committed forcible

sexual intercourse on the prosecutrix/PW1, who was below 12

years of age, and then he had criminally intimidated her. The

appellant/accused is awarded the minimum sentence prescribed

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for the proved offences. Hence, the appeal is devoid of merits.

Therefore, the order :

ORDER

The appeal is dismissed.

(A. M. BADAR, J.)

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